Getting a raw deal: When lodgement of an EEA residence card appeal does not prevent removal

Imagine the following scenarios:

  • Persons seeking to assert a right of residence as extended family members of EEA nationals exercising treaty rights in the UK;
  • Those the Home Office assert are party to a marriage of convenience with an EEA national with the result that, so far as the Home Office is concerned, the applicant is not a family member of an EEA national

This is what can happen when such persons are served with refusal decisions or following lodgement of appeal against such a refusal:

  • Detention with a view to removal and service of a “notice of removal window” (RED.0004 (fresh)). The notice of removal window is usually accompanied by a One-Stop Notice under section 120 of the Nationality, Immigration and Asylum Act 2002 . Section 120(2) provides that the serving of the One-Stop Notice requires the recipient to provide a statement, setting out his or her reasons for wishing to remain in the United Kingdom, and any other grounds on which he or she should be permitted to remain, together with any grounds on which he or she should not be removed from or required to leave the United Kingdom.

An applicant and their EEA national spouse may attend at the Home Office for a marriage interview. Following such interview, if a Home office decision maker concludes that the applicant’s marriage is one of convenience, with an applicant who has overstayed their leave, such a person may have their residence card application refused. Not only that but immediate detention might ensue also with service of a notice of a decision to remove, pursuant to section 10 of the 1999 Act.

Although such a person may lodge an appeal  against the refusal of the EEA residence card application, that statutory right of appeal does not have the effect of suspending the Secretary of State’s power to remove them from the United Kingdom. The person may be lawfully removed from the United Kingdom pending the determination of their EEA residence card appeal.

 

How the problem arises from the statutory provisions – a look at the 2006 EEA Regulations:

Where the Secretary of State decides to remove a person as an overstayer, the power to do so is given by section 10(1)(a) of the 1999 Act.

The 2006 EEA Regulations will continue to apply to some appeals for some time, in particular those appeals which had substantive consideration suspended   by the Tribunal from 2016 pending resolution of the Sala litigation,  ie the resolution of whether EEA extended family members have a right of appeal following refusal of a residence card application. With the decision in Khan v SSHD [2017] EWCA Civ 1755  in the Court of Appeal deciding that the Tribunal does have jurisdiction, more and more of these types of appeals are now being listed to be heard substantively by the Tribunal.   In such cases, the governing Regulations will therefore be those of 2006.

The refusal of an EEA residence card is a “EEA decision” within the meaning of paragraph 2(1)(b) of the 2006 Regulations, which define an EEA decision thus:

“‘EEA decision’ means a decision under these Regulations that concerns a person’s—

(a)entitlement to be admitted to the United Kingdom;

(b)entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card, document certifying permanent residence or permanent residence card; or

(c)removal from the United Kingdom.”

The right of appeal against an EEA decision, including the refusal of a residence card, is given by Regulation 26(1)c of the 2006 Regulations.

Regulation 19 of the 2006 Regulations provides that certain appeals under the Regulations are to have suspensive effect.

Regulation 29 of the 2006 Regulations provides in part:

“(1) This Regulation applies to appeals under these Regulations made to the First-tier Tribunal or the Upper Tribunal.

(2) If a person in the United Kingdom appeals against an EEA decision to refuse to admit him to the United Kingdom, any directions for his removal from the United Kingdom previously given by virtue of the refusal cease to have effect, except in so far as they have already been carried out, and no directions may be so given while the appeal is pending.

(3) If a person in the United Kingdom appeals against an EEA decision to remove him from the United Kingdom, any directions given under section 10 of the 1999 Act or Schedule 3 to the 1971 Act for his removal from the United Kingdom are to have no effect, except in so far as they have already been carried out, while the appeal is pending.”

Regulation 2(1) of the 2006 Regulations defines three classes of EEA decision, of which a decision on an application for a residence card is the second, appearing at Regulation 2(1)(b). Regulation 29(2) gives suspensive effect to an appeal against an EEA decision of the kind set out at Regulation(2)(1)(a) and Regulation 19(3) gives such effect to an appeal against an EEA decision of the kind set out at Regulation 2(1)(c). But no suspensive effect is given to a Regulation 2(1)(b) EEA appeal against the refusal of a residence card.

Section 82(1) of the 2002 Act confers a right of appeal against what is there described as an “immigration decision.  Section 78(1) prohibits the removal from the United Kingdom of certain section 82(1) appellants (see section 78(4)) from the United Kingdom while their appeals are pending. Certain provisions of the 2002 Act are by Schedule 1 to the 2006 Regulations to have effect in relation to appeals under those Regulations; but section 78 is not one of them.

 

What is the Upper Tribunal and Court of Appeal’s approach? the 2006 EEA Regulations :

R (on the application of Bilal Ahmed) v Secretary of State for the Home Department (EEA/s 10 appeal rights: effect) IJR [2015] UKUT 436 (IAC):

  • The fact that an applicant who is not an EEA national has a right of appeal under the Immigration (European Economic Area) Regulations 2006 against an EEA decision to refuse him a residence card does not have the effect of precluding the Secretary of State from removing him under section 10 of the Immigration and Asylum Act 1999.
  • Section 92(4)(b) of the Nationality, Immigration and Asylum Act 2002 (as it was before the changes made by the Immigration Act 2014) does not afford an applicant an in-country right of appeal against the section 10 decision, where the issue of whether the applicant is a member of the family of an EEA national is a matter of dispute.
  • The factual issue of whether the applicant is a family member falls to be determined by the First-tier Tribunal on appeal by the applicant against the EEA decision and/or the section 10 decision, whether or not the applicant may by then be outside the United Kingdom. A judicial review by the applicant of the decision to remove and/or the setting of removal directions will not succeed where the applicant’s application is based on marriage to an EEA national, if the Secretary of State reasonably suspects the applicant of being a party to a marriage of convenience.
  • The Upper Tribunal observed that it was submitted on the Secretary of State’s behalf that a judicial review challenge on the decision to remove should be based on normal public law principles, characterising the test as being whether, on the material available to the Secretary of State the applicant was a person “reasonably suspected” of being party to a marriage of convenience. The Upper Tribunal agreed that the applicant’s judicial review could succeed only if the Secretary of State’s categorisation of the marriage as one of convenience was found to be unlawful on public law principles. The Upper Tribunal could see no reason to depart from those principles in this type of judicial review. It was however stated that , any greater intensity of review beyond that advocated by the Secretary of State risks the very abuse which European and domestic lawmakers have been at some pains to avoid.
  • In the present case, the fact that the Secretary of State had a reasonable basis for taking the view that the applicant’s marriage was one of convenience was unarguable. The reasons for refusal letter went into considerable detail regarding problematic aspects of the answers given at interview by the applicant and his wife respectively. The interview record had also been adduced, which provided a basis for the Secretary of State ’s conclusion regarding the nature of the marriage. There was, in short, no irrationality or other public law unlawfulness in the decision to remove.
  • The Upper Tribunal observed that, where Parliament provides for a matter to be determined by appeal, albeit out-of country, there need to be “special or exceptional factors” before a court or tribunal will permit a substantive challenge to a removal decision pursuant to section 10 of the 1999 Act. The rationale is that the appeal affords an adequate alternative remedy. This principle has been trenchantly re-stated in R (Mehmood) and others v Secretary of State for the Home Department [2015] EWCA Civ 744. The Upper Tribunal could not begin to see any such factors in the present case.
  • It followed that although, the applicant remained in the United Kingdom, where his appeal to the First-tier Tribunal had been heard, the decision-making challenged in this judicial review was not unlawful. The applicant had no legal entitlement to remain in the United Kingdom for the purpose of pursuing that appeal.

 

The case of Bilal Ahmed was upheld in the Court of Appeal- Ahmed v Secretary of State for the Home Department [2016] EWCA Civ 303:

  • The right of appeal against an EEA decision, including the refusal of a residence card, is given by Regulation 26(1) of the 2006 Regulations. It is common ground that there is no provision which forbids such an appeal to be brought while the appellant remains within the jurisdiction. But the question is whether the law confers on such an appellant a positive right not to be removed until his appeal has been determined. The Upper Tribunal held (paragraph 26) that: “The basic flaw in the applicant’s case is to conflate the absence of a statutory prohibition on the bringing of an appeal from within the United Kingdom with the existence of a right to be so present in order to bring such an appeal and to prosecute it to its conclusion.”
  • There is nothing in the statutory provisions to give the appellant’s appeal against the refusal of a residence card suspensive effect so as to prevent his removal from the United Kingdom while the appeal is pending. On the contrary, the conferment of suspensive effect on appeals relating to EEA decisions listed at Regulation 2(1)(a) and (c) but not (b) raises the plain inference that it was the specific intention of the subordinate legislator to deny a 2(1)(b) appeal against refusal of a residence card any suspensive effect whatever.
  • At paragraph 26, the Upper Tribunal accepted in terms that there is no “prohibition on the bringing of an appeal from within the United Kingdom” but rightly contrasts this uncontentious fact with the very different proposition that there is a right to be present to bring and prosecute such an appeal. The fact that an in-country appeal in relation to a residence card is not prohibited is simply neutral.
  • The Appellant’s appeal against the refusal of a residence card had no suspensive effect, nor is there any provision conferring upon him a right not to be removed from the United Kingdom during the time provided for the giving of notice of appeal against a refusal of the residence card.
  • Section 92(4)(b) of the 2002 Act refers to a person who is a family member of an EEA national, not a person who claims to be such. The appellant had never sought to appeal the decision to remove him, and his marriage in the event had been definitively held to be one of convenience. He was not a family member of an EEA national(With effect from April 2015, the 2014 Act has substituted an entirely new version of section 92, in which there is no equivalent of former section 92(4)(b)
  • It was for the appellant to establish his EEA claim. That is done in such a case as this by application to the Secretary of State with a right of appeal thereafter, for which however the appellant has no right to be present in this country.

 

Has the position changed following the 2016 EEA Regulations?

Shote, R (On the Application Of) v Secretary of State for the Home Department [2018] EWHC 87 (Admin) :

On 27 February 2017, acting pursuant to Regulation 7 the 2016 EEA Regulations the Secretary of State refused an application made by the claimant on 5 June 2016 for a residence card as confirmation of a right of residence in the United Kingdom as the dependent family member of an EEA national, her Finnish mother. The refusal was on the ground that the Secretary of State was not satisfied that the claimant was genuinely dependent upon her EEA family member. The notice of decision informed the claimant: (a) that she should make arrangements to leave or could be the subject of enforced removal; and (b) she had rights of appeal and to submit a further EEA application if able to demonstrate an EU right of residence. The claimant filed an appeal on 8 March 2017.

The Secretary of State then generated a notice of fresh removal window (form RED.0004) dated 14 March 2017, addressed to the claimant and informing her that her new removal window commenced after 7 days of receipt of the notice (counted as being two working days after posting) and remained in force up to three months, in which time window she could be removed without further notice. When the claimant attended the immigration reporting centre in Croydon on 30 March 2017, in accordance with the terms of her bail, she was served with a letter dated 21 March 2017, notifying her of removal directions for 22:30 on 30 March 2017. She was detained, and served with a notice of immigration detention (form IS91R).

Relevantly the Court considered and concluded as follows:

  • It was submitted on the claimant’s behalf that the appeal against the refusal of a EEA residence card, filed on 8 March 2017, was in law a suspensive in-country appeal, which barred removal action.
  • The Judge could   not accept the claimant’s argument. It was considered that Regulation 36 of the 2016 EEA Regulations provides for the relevant appeal rights. Regulation 37 identifies which appeals can only be pursued out of country, and does not include an appeal against an EEA decision to refuse a residence permit. Regulation 40(2) and (3) identify the situations in which directions for removal are to have no effect while an appeal is pending. Regulation 33(1)(a) and (2) identifies a further situation in which an extant appeal restricts the giving of removal directions, absent certification.
  • These are express, carefully designed protections and the claimant could not demonstrate that she fell within them. The fact that she was not required to appeal only from abroad (Regulation 37) did not mean she was entitled, on having commenced an appeal, not to be removed. That would be to “conflate the absence of a statutory prohibition on the bringing of an appeal from within the United Kingdom with the existence of a right to be so present in order to bring such an appeal and to prosecute it to its conclusion”, which was the “basic flaw” identified in R (Ahmed) v SSHD [2015] UKUT 436 (IAC) at §26, in a passage endorsed by the Court of Appeal [2016] EWCA Civ 303 [2016] Imm AR 869 at §10.
  • Regulation 2 defines “EEA decision” as including “a decision under these Regulations that concerns … (b) a person’s entitlement to be issued with … a … residence card”. That covered this case, but was not a species of EEA decision covered by Regulation 40(2) or (3). Regulation 36(10) and Schedule 2 mean that certain provisions of the Nationality Immigration and Asylum Act 2002 have effect to EEA appeal rights; but those provisions do not include section 78 of the 2002 Act (which prohibits removal from the United Kingdom in certain situations).
  • As Laws LJ (for the Court of Appeal) explained in Ahmed (see [2016] EWCA Civ 303 at §13) – a case which concerned the previous 2006 EEA Regulations (the Immigration (European Economic Area) Regulations 2006) – the “plain inference [is] that it was the specific intention of the subordinate legislator to deny … suspensive effect” to an appeal against refusal of an EEA residence card. The claimant in the present case was unable, in the Court’s judgment, to point to any material distinction between the 2006 and the 2016 EEA Regulations, nor was the Judge shown any conflicting binding authority or overriding and inadequately-domesticated EU right.
  • Also relied upon by the claimant was the argument that she could not be removed pursuant to section 10(1) of the Immigration and Asylum Act 1999 (as amended by the Immigration Act 2014), that being the removal power relied on by the Secretary of State in this case.
  • The claimant’s argument involved the following: (1) Section 10(1) only empowers removal of a person who “requires leave to enter or remain in the United Kingdom but does not have it”. (2) A person who can demonstrate, objectively, that they meet tests of eligibility under the 2016 EEA Regulations so as to have a right to a residence permit (here, as a “family member” through being a “dependant”: Reg. 7) has thereby an entitlement to residence in the UK (Reg 14(2)) and so does not need leave to enter or remain. (3) Where the Secretary of State has wrongly failed to recognise that eligibility, the person asserting it, and able objectively to demonstrate it, is irremovable under section 10(1). (4) That position is given effect by means of the judicial review Court having a precedent fact function, to determine the factual questions of eligibility, in order to determine the legality of removal
  • It was noted that the claimant accepted that this argument would not have been available prior to the 2014 Act amendments to section 10. That is because the pre-2014 Act wording was applicable to a person who previously had leave to enter or remain but had remained beyond the time limited by that leave. That description would have applied to the claimant in the present case, who from August 2005 had been an overstayer.
  • The Court could not accept the claimant’s argument. A person whose claimed eligibility under the 2016 EEA Regulations has been rejected, and who wishes to contest that conclusion through a legal remedy, has statutory appeal rights. In the present circumstances, they are not suspensive. It would subvert that statutorily non-suspensive character if removal could prospectively be challenged on judicial review by determining the merits of that eligibility.
  • The correct analysis, was as follows. A person who claims eligibility under the 2016 EEA Regulations, and whose claim has been rejected by the Secretary of State but is appealable, is a person who “requires” and “does not have” leave to enter or remain for the purposes of the section 10(1) removal power. Eligibility under the 2016 EEA Regulations is not a precedent fact for the purposes of judicial review of the section 10 removal power, nor for the purposes of judicial review of immigration detention. It follows that, on the premise that steps (1) and (2) are correct, steps (3) and (4) are not.
  • The Court of Appeal in Ahmed held that, even where the statutory provision governing removability (section 92(4)(b)) used the express description “a member of the family of an EEA national”, that did not apply (see [2016] EWCA Civ 303 at §24) to “a person who claims to be such”. The Court went on to refer to it being for the individual “to establish his EEA claim”, using the statutory mechanism of “application to the Secretary of State with a right of appeal thereafter” (§27). It was stated if anything, the argument in the present case was harder for the claimant than was the argument in Ahmed. That is because section 10(1) does not use an express description of an EEA family member. The Court of Appeal’s logic was at least as compelling here. An individual cannot avoid the description of a person who “requires leave to enter or remain” by reason of a claimed eligibility, rejected by the Secretary of State and yet to be determined on appeal.

 

Can service of the notice of removal window (Form RED.0004 (fresh)) be appealed?

Ahmad (scope of appeals) Pakistan [2018] UKUT 84 (IAC) (23 January 2018):

  • The Upper Tribunal observed that at  the First-tier Tribunal appeal hearing an argument was advanced on behalf of the appellant, relying upon regulations 2 and 26 of the 2006 Regulations in submitting that a right of appeal did lie in respect of the notice of removal window. Attention was drawn to the definition of “EEA decision” in regulation 2. Such a decision is there defined as “a decision under these Regulations that concerns – “… (c) a person’s removal from the United Kingdom … .” It was submitted to the First Tier Judge that the notice in Form RED.0004 concerned the appellant’s removal from the United Kingdom. It was argued that the notice of removal window constituted an EEA decision, falling within regulation 2. This meant that regulation 26 operated to give the appellant a right of appeal against the EEA decision.
  • The Upper Tribunal rejected these submissions. It was stated that the reason why the notice of removal window does not constitute an EEA decision, within the meaning of regulation 2, is not to do with whether the notice concerns a person’s removal from the United Kingdom. Plainly, the notice of removal window does concern removal.
  • The notice of removal window is, in reality, no more than a statement of a person’s liability to removal from the United Kingdom. That liability arises from the fact that the person in question falls within the ambit of section 10 of the Immigration and Asylum Act 1999, as being a person who requires leave to remain in the United Kingdom, but does not have it. The notice of removal window is not, therefore, a EEA decision, as defined by regulation 2.
  • In any event, even if the notice of removal window could be said to constitute a decision, in the present case, it was manifestly not made under the 2006 Regulations, as required by the definition in regulation 2
  • Regulation 19 contains powers of removal in respect of EEA nationals and their family members. There was no suggestion that, in the present case, that the Secretary of State had decided to remove the appellant pursuant to the powers of regulation 19. The appellant could not, in any case, fall within regulation 19(3), as he was not the family member of an EEA
  • As is clear from the judgment of the Court of Appeal in Ahmed v Secretary of State for the Home Department [2016] EWCA Civ 303, that where the Secretary of State concludes that a person has no EU right to be in the UK; for example, because his marriage is regarded as one of convenience, the Secretary of State may act under section 10 of the 1999 Act to remove the person concerned. The Secretary of State does not and cannot use the power of removal contained in the 2006 Regulations because that person does not fall within the terms of regulation 19. The Secretary of State was  not seeking to remove the person as an EEA national or the family member of such a national.

 

Can Article 8 arguments of the appellant be addressed by a Judge in the residence card appeal?

Ahmad (scope of appeals) Pakistan [2018] UKUT 84 (IAC) (23 January 2018):

  • It was submitted on the Appellant’s behalf that his Article 8 arguments should have been addressed by the Judge in the residence card appeal.
  • It was noted by the Upper Tribunal that this set of submissions depended on a close analysis of regulation 26(7), paragraph 1 of Schedule 1 to the 2006 Regulations, section 85 of the 2002 Act and section 120 of that Act.
  • On the appellants behalf it was put forward that regulation 26(7) states that the provisions of or made under the 2002 Act, referred to in Schedule 1, have effect for the purposes of an appeal under the Regulations, in accordance with that Schedule. Paragraph 1 of Schedule 1 has the effect that the sole permitted ground of appeal under section 84 of the 2002 Act is that the decision breaches the appellant’s rights under the EU Treaties in respect of entry to or residence in the United Kingdom.
  • It was noted by the Upper Tribunal that Section 85 governs the matters to be considered in an appeal. In an EEA appeal, paragraph 1 of Schedule 1 provides that the references to a section 120 statement (One-Stop Notice) in section 85 include references to a statement under that section, as applied by paragraph 4 of Schedule 2 to the Regulations. Accordingly, it was submitted on the Appellants’ behalf that section 85 of the 2002 Act applied to his EEA appeal. This had two consequences First, section 85(1) required the First-tier Tribunal Judge to consider the Secretary of State’s refusal of 12 July 2017 of the appellant’s human rights claim (which, was certified under section 94). Secondly, it was submitted that, in any event, the appellant had made a statement under section 120 of the 2002 Act and the First-tier Tribunal Judge was required to consider the matters raised in that statement.
  • The Upper Tribunal noted that even though the refusal of the human rights claim was certified, the appellant had a right of appeal, albeit that the certification meant the right was not exercisable until the appellant had left the United Kingdom. However, it was stated that this took the appellant’s case nowhere. Section 92 provided in terms that a claim certified under section 94 must be brought from outside the United Kingdom. Accordingly, the effect of sections 92 and 94 was that the appellant could not pursue before the First-tier Tribunal Judge an appeal against the refusal of his human rights claim. Section 85(1) has to be read in that light.
  • The notice of removal window included a One-Stop Notice under section 120 of the 2002 Act. It was submitted that the appellant’s grounds of appeal to the First-tier Tribunal in respect of the residence card appeal constituted a statement for the purposes of section 120(2). Accordingly, regardless of sections 92 and 94, it was submitted that the service of the One Stop Notice meant that the appellant could, in fact, advance his human rights appeal before the Judge. Reliance was placed upon Paragraphs 36 to 39 of Amirteymour v Secretary of State for the Home Department [2017] EWCA Civ 353
  • The Upper Tribunal considered that the judgment in Amirteymour did not assist the appellant. That case said nothing about certification. It was certainly not authority for a proposition that the mere service of a One-Stop notice had any material effect on the Secretary of State’s power of certification under section 94.
  • Even if the appellant had responded to the One-Stop Notice of 5 July 2017 by providing a statement under section 120 that raised Article 8 grounds, the Upper Tribunal did not consider that – given the certification of the human rights claim – the First-tier Tribunal Judge could have entertained an appeal which involved the claim which had been refused and certified.
  • The reference to Article 8 in the appellant’s grounds of appeal regarding the residence card decision did not constitute “a statement under section 120”. The contents of the grounds were inadequate. The grounds merely asserted, without giving any reasons, that “the decision is a breach of his Article 8 rights” (paragraph 18(2)). However, the clear effect of section 120(4) and (5) is that a statement in response to the notice will only have effect insofar as it constitutes a supplementary statement containing additional reasons or grounds. The appellant’s bare reference to Article 8 did not meet this requirement.
  • Any statement required to be made under that section has to take the form of a statement made to the Secretary of State or an Immigration Officer, as the case may be. Section 120(5) makes this requirement express in the case of subsequent statements; that is to say, where a section 120 notice has been subsequently served.
  • One of the essential purposes of section 120 is to provide a mechanism whereby the Secretary of State can, where appropriate, respond positively to the statement, for example, by granting the person concerned international protection and/or lifting a threat of removal from the United Kingdom. If a person could make a section 120 statement only in his or her grounds of appeal to the Tribunal, the scope for that Tribunal to become the primary decision-maker would be significantly expanded. Thus, the statement has to be given to the Secretary of State or her Immigration Officer.
  • That this is the proper construction of section 120 is, underscored by the distinction drawn in section 85(2) between a “matter raised in the statement” and a “ground of appeal of a kind listed in section 84 against the decision appealed against”. Thus, a section 120 statement, even though not formally repeated in the grounds of appeal, must be considered by the Tribunal. If, as the appellant contended, the grounds of appeal could themselves constitute the statement, one would have expected the statutory provisions to say so.
  • The Upper Tribunal concluded that the First-tier Tribunal Judge was correct to find that, in the circumstances of the appellant’s case, the appellant’s residence card appeal did not require the Judge to address Article 8 of the ECHR.

 

Conclusion

The Secretary of State’s decision to remove is susceptible to judicial review.

One way to obtain an in-country right of appeal, that does not focus upon the non-suspensive EEA residence card appeal, is to respond to the One Stop Notice driving forward a well prepared family life Article 8 claim capable of withstanding the Section 94 certification  procedure. If the human rights claim is accepted, well and good however where an in-country right of appeal is given following a refusal decision, in such circumstances it is possible to obtain some respite whilst being able to remain in the UK to pursue such an appeal through to conclusion.

It may also be possible to obtain a deferral of removal directions without pursuing a judicial review claim: where the Secretary of State has for example refused a residence card application for an extended family member on the basis that insufficient evidence of dependency has been provided, a claimant may seek to cure the defects of the original residence card application by responding to the One Stop Notice and presenting stronger evidence and representations supportive of a new residence card application in the hope that following consideration, a right of residence might be granted on the strength of the new application.

The 7year Rule and parental misconduct: Overstaying, failed asylum claim and use of false documents not fatal to claim decides the Upper Tribunal

Despite the formalisation and introduction of the 7year provisions into the Immigration Rules, in practice the Home Office seem to abhor the very Rule that Government has entrenched into the legal framework.  Where applications placing reliance upon the 7year Rule are refused, at appeal, Home Office Presenting Officers rarely take issue with establishment of fact of the child’s UK residence itself but fervently seek to sustain an attack focused upon the parent’s past conduct and behaviour, with the intended result that the public interest in removal becomes stronger.

The ancestry of Paragraph 276 ADE (1)(iv) is well set out between paragraphs 8 to 17 of PD and others v Secretary of State for the Home Department [2016] UKUT 108 (IAC).   In PD, the Upper Tribunal clarified at Para 12 of their judgement “…….in applications for leave to remain based on Article 8 private life, it has not been sufficient for a child applicant to have accumulated seven years continuous residence in the United Kingdom. Rather, the applicant has also had to demonstrate that he or she could not reasonably be expected to leave the United Kingdom”.

A previous blog post, Children’s residence in the UK: Facets of the 7Year Rule, clarifies as follows:

It is important to note however that the following considerations can be taken into account by the Home Office or a Tribunal Judge  as relevant  when having  regard to the 7year Rule, in particular when applying the  “reasonableness  test”:

  • Parental misconduct taking the form of illegal entry, unlawful overstaying or illegal working
  • Private life formed or developed during periods of unlawful or precarious residence in the UK
  • The child’s best interests may be to remain in the UK, but they could be refused leave to remain, in particular in circumstances where their parents are taken to have shown a disregard of immigration laws, by remaining illegally in the UK

A parent’s adverse behaviour in the UK can therefore at times defeat reliance upon the 7year Rule however hope might lie in a recent Upper Tribunal decision which, very much like the case of PD, seeks to adopt a common sense approach in cases where a parent’s behaviour can be viewed as “run of the mill immigration offending”: MT and ET (child’s best interests; ex tempore pilot) Nigeria [2018] UKUT 88(IAC) (1 February 2018)

 

Summary Background:

MT, the mother and a Nigerian citizen arrived in the United Kingdom with ET, the daughter in July 2007. MT made several applications for leave to remain on Article 8 grounds, which were refused. At some point an appeal was dismissed by the First Tier Tribunal in January 2011.

MT then applied for asylum in 2011, which was refused and certified. Following a successful judicial review by the Home Office made a new decision, carrying an in-country right of appeal. ET appealed to the First-tier Tribunal and her appeal was dismissed by First-tier Tribunal Judge Baird in November 2012.

MT at some stage, received a community order for using a false document to obtain employment.

Further applications ensued, leading to the Home Office decisions in August 2016 to refuse the appellants’ human rights claims.   The appellants appealed to the First-tier Tribunal.  On 6 July 2017, their appeals were heard by Upper Tribunal Judge Martin, sitting in the First-tier Tribunal. She dismissed the appellants’ appeals in an oral (ex tempore) decision delivered at the hearing and subsequently reduced to writing. Permission to appeal was granted by the Upper Tribunal on 26 September 2017.

 

Why Judge Martin erred in dismissing the Appellants’ appeals:

  • It was noted that the appellants’ appeals were dealt with as part of the “Proof of Concept for the Extempore Judgment Pilot 2017”, in relation to which the relevant procedure was described by the Upper Tribunal.
  • The Upper Tribunal however was satisfied that Judge Martin fell into legal error, both as regards the way in which she conducted the Proof of Concept pilot hearing and otherwise. Before the Upper Tribunal, the Home Office Presenting Officer accepted that such errors had occurred.
  • The Proof of Concept letter and the directions issued with it made it clear that the Home Office was expected to identify the factual issues which, if determined in favour of the appellants, would lead to their appeals being allowed. The Upper Tribunal found that it was quite apparent from the Statement of Issues and Response of 15 May 2017, read with the reasons for refusal letter of 16 August 2016, that the Home Office case on Article 8 depended upon Judge Martin finding, as a fact, that ET’s best interests lay in moving to Nigeria with her mother.
  • The Upper Tribunal noted that importantly, there was no indication in the letter that the Home Office was seeking to support the case that, even if ET’s best interests now lay in remaining in the United Kingdom, the particular immigration history of MT was such that the Article 8 proportionality balancing exercise nevertheless fell to be struck in favour of the Home Office, on public interest grounds.
  • It should, therefore, have been apparent to Judge Martin on 6 July 2017 that the decision of the Home Office Presenting Officer to put before the Judge and to seek to rely upon the determination of First-tier Tribunal Judge Baird from 2012 represented a material shift on the Home Office’s part, from her stance as indicated in the Statement of Issues and Response of some seven weeks earlier.
  • The Upper Tribunal considered that it was nothing to the point that the “starred” case of Devaseelan v Secretary of State for the Home Department [2002] IAT 702 requires a judicial fact-finder to take a previous judicial finding of fact in respect of an appellant as the starting point for consideration of that appellant’s current case. Nor was it anything to the point that appellant MT and her advisers could be expected to know about the 2012 determination.
  • The approach taken by the Proof of Concept exercise depended upon the Home Office being willing to state to the First-tier Tribunal that, if certain matters were found in favour of the appellants, then the Home Office accepted that the appeal fell to be allowed. On the facts of the present case, that manifestly did not enable the Judge to embark upon a proportionality balancing exercise that placed weight upon (a) findings from 2012 regarding the reliability of ET’s evidence to Judge Baird; (b) the fact that MT had made “an unfounded asylum claim and was found to be a dishonest witness” in 2012; (c) that she had committed “an offence of fraud”; and (d) that MT had “neither mentioned the previous determination of Judge Baird nor did she mention her education qualifications”.
  • The Upper Tribunal stated that at the very least, what the Judge should have done was to consider whether, in the interests of the overriding objective, the Home Office should have been permitted to change her stance. There was no indication that she considered this point. Were she to have done so and to have decided to allow the Home Office to do so, then the appeal should have been removed from the Proof of Concept programme, so as to enable the appellants to have a fair opportunity of responding.

 

Reference to MA(Pakistan):

The Upper Tribunal noted what the Court of Appeal in MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705  had to say regarding parental conduct at Paragraphs 43 of that Court’s decision:

“But for the decision of the court of Appeal in MM (Uganda),…………I would have focused on the position of the child alone, as the Upper Tribunal did in MAB”,

And Paragraph 45,

However, the approach I favour is inconsistent with the very recent decision of the Court of Appeal in MM (Uganda) where the court came down firmly in favour of the approach urged upon us by Ms Giovannetti, and I do not think that we ought to depart from it. In my judgment, if the court should have regard to the conduct of the applicant and any other matters relevant to the public interest when applying the “unduly harsh” concept under section 117C(5), so should it when considering the question of reasonableness under section 117B(6)………It seems to me that it must be equally so with respect to the reasonableness criterion in section 117B(6), It would not be appropriate to distinguish that decision simply because I have reservations whether it is correct. Accordingly, in line with the approach in that case, I will analyse the appeals on the basis that the Secretary of State’s submission on this point is correct and that the only significance of section 117B(6) is that where the seven year rule is satisfied, it is a factor of some weight leaning in favour of leave to remain being granted.

The Upper Tribunal also observed what the Court of Appeal stated in MA(Pakistan) at Paragraph 46,

“Even on the approach of the Secretary of State, the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise”. Elias LJ then referred to the guidance of August 2015 in the form of Immigration Directorate Instructions entitled “Family Life (as a partner or parent) and Private Life: 10 Year Routes”. There, it is “expressly stated that once the seven years’ residence requirement is satisfied, there need to be ‘strong reasons’ for refusing leave (para 11.2.4)”,

And at Paragraph 49,

“However, the fact that the child has been in the UK for seven years would need to be given significant weight in the proportionality exercise for two related reasons: first, because of its relevance to determining the nature and strength of the child’s best interests; and second, because it establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary.”

 

The Upper Tribunal’s considerations and conclusion:

Having found that Judge Martin’s decision contained errors which were such as to require the Upper Tribunal to set her decision aside, it was decided to proceed to re-make a decision in the appeal, noting that they were not bound by the constraints of the Proof of Concept process.

    • The Upper Tribunal found the fact that ET’s best interests did so lie in the United Kingdom to be manifest. In this regard, the Upper Tribunal agreed with and endorsed the FTT Judge’s findings on this issue in her decision.
    • The Upper Tribunal noted that ET had been in the United Kingdom for over ten years. She arrived in the when she was only 4. She was well advanced in her education in this country. As a 14 year old, she could plainly be expected to have established significant social contacts involving friends in school and outside (such as at church). She had embarked on a course of studies leading to the taking of GCSEs.
    • It was observed that ET had no direct experience of Nigeria. Whether or not there is a functioning education system in that country, her best interests, in terms of section 55 of the 2009 Act, manifestly lay in remaining in the United Kingdom with her mother rather than, as the Home Office contended, returning to Nigeria with her mother.
    • The Upper Tribunal however made it clear that a much younger child, who had not started school or who had only recently done so would have difficulty in establishing that her Article 8 private and family life has a material element, which lies outside her need to live with her parent or parents, wherever that may be. This position, however, changes over time, with the result that an assessment of best interests must adopt a correspondingly wider focus, examining the child’s position in the wider world, of which school will usually be an important part.
    • The Upper Tribunal concluded that this was why both the age of the child and the amount of time spent by the child in the United Kingdom will be relevant in determining, for the purposes of section 55/Article 8, where the best interests of the child lie.
    • It was made clear by the Upper Tribunal that on the present state of the law, as set out in MA, they needed to look for “powerful reasons” why a child who has been in the United Kingdom for over ten years should be removed, notwithstanding that her best interests lie in remaining.
    • The Upper Tribunal found that on the present case, there were no such powerful reasons. The Tribunal acknowledged that the public interest lay in removing a person, such as MT, who had abused the immigration laws of the United Kingdom. Although the Home Office Presenting Officer did not seek to rely on it, the Upper Tribunal took account of the fact that, as recorded in Judge Baird’s decision, MT had, at some stage, received a community order for using a false document to obtain employment. But, given the strength of ET’s case, MT’s conduct in the Upper Tribunal view came nowhere close to requiring the Home Office to succeed and the Presenting Officer did not strongly urge the Upper Tribunal to so find.
    • It was noted by the Upper Tribunal, that on the appellants behalf it was submitted that, even on the findings of Judge Martin, MT was what might be described as a somewhat run of the mill immigration offender who came to the United Kingdom on a visit visa, overstayed, made a claim for asylum that was found to be false and who has pursued various legal means of remaining in the United Kingdom. In response the Upper Tribunal stated that none of this was to be taken in any way as excusing or downplaying MT’s unlawful behaviour. The point was that her immigration history was not so bad as to constitute the kind of “powerful” reason that would render reasonable the removal of ET to Nigeria.
    • The Upper Tribunal found that the decision of the First-tier Tribunal contained a material error of law, set it aside that and substituted a decision of their own, allowing the appeals on human rights grounds (Article 8).

 

 

Conclusion

The decision of the Upper Tribunal is very much welcome and is one to most certainly rely upon in cases where the child’s parents have overstayed in the UK, made several unsuccessful claims or worked illegally in the UK.

Not intending however to put a damper on matters, it is important to observe that the particular facts relevant to MT and ET’s case are such that a Home Office Presenting Officer,  at appeal might be in a position to raise such facts with a view to distinguishing them from a particular instant case so as to convince a Tribunal Judge to dismiss an appeal:

  • The initial Judge could have made a finding that it was not in ET’s best interests to remain in the UK. Although Judge Martin ultimately found that it was reasonable to expect ET to go to Nigeria with her mother, she had however made a finding that ET’s best interests are clearly to live with her primary carer who is her mother and to be in the UK. … [ET] has been in the UK from the age of 4 till the age of 14 and has no memory of Nigeria. She is well integrated in school and socially”.  This finding enabled the Upper Tribunal to readily carry forth that finding, agreeing with and endorsing Judge Martin’s findings on this issue in her decision.
  • What also counted in ET ‘s favour was not just that she had resided in the UK for at least 7years but had in fact lived here for much longer. The Upper Tribunal noted her lengthy residence and observed to her favour that she had resided in the United Kingdom for over ten years( of course if she had been born in the UK and resided here continuously for 10years , she would have been eligible as a child to apply for registration as a British citizen).
  • The Upper Tribunal also observed that there was no indication in the refusal letter that the Home Office was seeking to support the case that, even if ET’s best interests now lay in remaining in the United Kingdom, the particular immigration history of MT was such that the Article 8 proportionality balancing exercise nevertheless fell to be struck in favour of the Home Office, on public interest grounds.  Increasingly however, most refusal letters do now rely upon a parent’s adverse immigration history and it is unlikely that currently Home office decision makers would omit inclusion of such adverse factors in cases where the 7year rule is concerned. The fact that the Home Office did not initially rely upon such matters however enabled the Upper Tribunal in MT to state at paragraph 23 of their decision, The stance of the Presenting Officer on 6 July 2017 was, we consider, analogous with the situation where the respondent seeks to withdraw a concession, previously made in appellate proceedings. In MSM (journalists; political opinion; risk) Somalia [2015] UKUT 413, the Upper Tribunal explained that a judge needs to adopt a broad approach to the issue of whether the respondent should be allowed to withdraw a concession. Amongst other matters, fairness to the litigant will need to be considered (paragraph 24). At the very least, what the Judge should have done was to consider whether, in the interests of the overriding objective, the respondent should have been permitted to change her stance. There is no indication that she considered this point. Were she to have done so and to have decided to allow the respondent to do so, then the appeal should have been removed from the Proof of Concept programme, so as to enable the appellants to have a fair opportunity of responding”.
  • The case of MA(Pakistan) can also be relied upon by the Home Office Presenting Officer to negative effect in particular having regard to paragraph 45 of that decision as it relates to the acceptance that, “the court should have regard to the conduct of the applicant and any other matters relevant to the public interest when applying the “unduly harsh” concept under section 117C(5), so should it when considering the question of reasonableness under section 117B(6)…”   This also includes paragraph 47 of MA(Pakistan) which states, “Even if we were applying the narrow reasonableness test where the focus is on the child alone, it would not in my view follow that leave must be granted whenever the child’s best interests are in favour of remaining. I reject Mr Gill’s submission that the best interests assessment automatically resolves the reasonableness question. If Parliament had wanted the child’s best interests to dictate the outcome of the leave application, it would have said so. The concept of “best interests” is after all a well established one. Even where the child’s best interests are to stay, it may still be not unreasonable to require the child to leave. That will depend upon a careful analysis of the nature and extent of the links in the UK and in the country where it is proposed he should return. What could not be considered, however, would be the conduct and immigration history of the parents”.
  • Following on from the above, a Home Office Presenting Officer might also rely upon the case of AM (Pakistan) & Ors v Secretary of State for the Home Department [2017] EWCA Civ 180 to negative effect. It was accepted by the Court of Appeal in AM(Pakistan) that the two teenage children relevant to the case,  were qualifying children who satisfied the seven year rule, and that the parents had a genuine and subsisting parental relationship with them. Notwithstanding that the children’s best interests were to remain in the UK, the First Tier Judge held that they should be refused leave to remain.  The reason was that their parents had shown a blatant disregard to the immigration law, choosing to remain illegally on the expiry of their visas. They did not seek to regularize their status for many years, and even when they did, they remained illegally in the country after their applications had been refused. It was noted that in reaching her conclusion the  FTT judge followed guidance given by the Court of Appeal in EV (Phillipines) and others v Secretary of State for the Home Department [2014] EWCA Civ 874 as to how the balancing exercise should be carried out.  On appeal, the Upper Tribunal was however satisfied that when properly construed, section 117B(6) and paragraph 276ADE(1)(iv) required the court to ask whether it was reasonable or not only from the point of view of the qualifying child.  On that analysis,  the Upper Tribunal concluded that the appeals of the two teenage boys had to succeed in the light of the findings of the FTT judge. The Court in AM(Pakistan) however concluded that it was bound by the decision in MA (Pakistan) as to the proper construction of the provisions in issue, and decided that necessarily it followed that the decision of the Upper Tribunal could not stand.

Overall, it is important to note that as regards the 7year Rule, on appeal the Tribunal will reach different decisions in individual cases, based upon different factual considerations having applied the relevant legal framework and principles arising out of established caselaw.  No two cases are alike.

 

 

Adult Dependant Relatives: Court of Appeal confirms the Rules are “rigorous and demanding”

How old, ill, disabled or bereft of emotional support does an elderly parent have to be in order to satisfy the requirements of the Adult Dependant Relatives Rules?

From recent judgments in the higher courts and in practice generally, it seems that evidence provided in support of applications under this Rule can never be good enough nor sufficient.

In dismissing the appeal, the Court of Appeal in Ribeli v Entry Clearance Officer, Pretoria [2018] EWCA Civ 611 (27 March 2018), has very recently confirmed what most already know- that the Adult Dependant Relatives Rules are “rigorous and demanding”.  The Appellant found no refuge by relying upon Article 8 family life arguments in the alternative.

The Court observed that the Rules were challenged by way of judicial review in the case of BritCits.  The claim failed in the High Court.  It was also noted that the Court of Appeal in R (BritCits) v Secretary of State for the Home Department [2017] EWCA Civ 368; [2017] 1 WLR 3345, dismissed the appeal by the Claimant organisation and held that the changes made to the rules in 2012 had been lawfully made. It was observed at the appeal hearing in Ribeli that the application for permission to appeal in BritCits was subsequently refused by the Supreme Court.

 

Summary Background:

The Appellant in Ribeli , a South African national was born on 8 August 1953.  She suffered from a variety of medical conditions, including a degenerative back disease, osteoarthritis and fibromyalgia. Her application for entry clearance was sponsored by her daughter, a British citizen (but formerly a citizen of South Africa).

The application was refused by the Entry Clearance Officer because he was not satisfied that the Appellant could not obtain necessary care and support in South Africa, as required by Paragraph E-ECDR.2.5, which is part of Appendix FM to the Immigration Rules. The conclusion by the Entry Clearance Officer was that without substantiated evidence that care could be provided locally, he was not satisfied that the Appellant was unable to obtain the required level of care in South Africa.

Following refusal of her application, the First Tier Tribunal( FTT) allowed her appeal. The Entry Clearance Officer  applied for permission to appeal. Following the grant of permission, the Upper Tribunal set aside the FTT decision and dismissed the Appellant’s appeal. The appeal then proceeded to the Court Appeal upon the Appellant’s application.

 

Relevant Rules in Summary – Appendix FM:

E-ECDR.2.1, requires that an applicant be the-

(a) parent aged 18 years or over;

(b) grandparent;

(c) brother or sister aged 18 years or over; or

(d)son or daughter aged 18 years or over of a person (“the sponsor”) who is in the UK.

 

E-ECDR.2.3, states that the Sponsor must at the date of application be-

(a) aged 18 years or over; and

(b)

(i) a British Citizen in the UK; or

(ii) present and settled in the UK; or

(iii) in the UK with refugee leave or humanitarian protection.

 

E-ECDR.2.4, provides that the applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, must as a result of age, illness or disability require long-term personal care to perform everyday tasks.

 

E-ECDR.2.5, states that the applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because-

(a) it is not available and there is no person in that country who can reasonably provide it; or

(b) it is not affordable.

 

Court of Appeal’s considerations and conclusions under the Rules:

 

  • The Entry Clearance Officer( ECO) was correct in observing that the difficulties experienced by the Appellant could not be as fundamental or severe as was being submitted because, if they had been, she would not be able to wash herself or eat. It was reasonable for the ECO to query the need for clear evidence on what exactly was happening on a day to day basis in the Appellant’s life.
  • It was noted that the Appellant had recently stayed with her daughter in the UK. The Appellant visited her daughter in the UK on two occasions, in 2008 and, more recently, between 28 August and 30 November 2012. Yet nothing in the evidence of either the Appellant or her daughter had said that her condition was so bad that she was not eating properly; that she was not washing herself or anything of that sort.
  • There was no independent evidence that the Appellant was unable, even with the practical and financial help of her daughter and sponsor in the UK, to obtain the required level of care in the country where she was living. That is what the relevant Rules require: see e.g. paragraph 35 of Appendix FM – SE. The only evidence that was placed before the FTT on behalf of the Appellant (the GP’s letter of 18 December 2013) referred only to the Table View area, where the Appellant lives, not to the larger Cape Town area, still less the whole of South Africa.
  • On the subject of waiting lists for care homes in South Africa, there was insufficient evidence to justify the conclusion that there was no care available to the Appellant in the whole of South Africa.
  • There was no independent evidence to support the FTT’s assertion that, without the supervision of a close relative, the delivery of care services in South Africa would be wholly unreliable.
  • There was no independent evidence that the care that the Appellant required was not available in South Africa, even with the practical and financial help of her daughter in the UK.
  • The burden of proof lay on the Appellant to show that she qualified for entry clearance in accordance with the terms of the Rules. Those Rules are “rigorous and demanding”. That was the policy decision of the Secretary of State and was endorsed by Parliament in approving the change to the Rules in 2012. A challenge to that change has been considered and was rejected by the Court in BritCits.
  • What was crucial in the present case was the Appellant’s physical needs. The medical evidence spoke of her emotional needs not in themselves but in so far as a failure to meet them may lead to a deterioration in her physical health, in particular the fybromyalgia. Taken by itself, the Appellant’s mental health (“anxiety and mild depression”) could  not possibly be regarded as being so serious that she could not be cared for in South Africa.
  • As to her physical care needs, the evidence simply did not discharge the burden of proof: it was insufficient to prove that the Appellant’s care needs could not be met in South Africa. There was insufficient evidence as to what particular steps had been taken to obtain a place at a care home elsewhere in that country even if one was not available in her home area.

 

Court of Appeal’s considerations and conclusions under Article 8 of the ECHR outside the Rules:

  • The test under Article 8 is an objective one, whatever the subjective feelings of a person may be. It was noted that for understandable reasons, the Sponsor wanted to continue to have the professional and social life she had built up in the UK and did not wish to return to South Africa. The Court however stated that did not come close to establishing that the ECO’s refusal to grant the Appellant entry clearance constituted a disproportionate interference with Article 8 rights.
  • The starting point is that it is well-established in the authorities that there is no relevant family life for the purpose of Article 8 simply because there is a family relationship between two adults (such as a parent and her child) who live in different countries. There has to be something more than normal emotional ties
  • The crucial point was that the Appellant’s daughter could reasonably be expected to go back to South Africa to provide the emotional support her mother needed as well as to provide practical support. If the concern was that the Appellant might be cared for in her home by people who may turn out not to be trustworthy, there was no reason why her daughter could not live and work in South Africa to supervise the care arrangements made for her mother.
  • What this case was about was the choice which the daughter had exercised and wished to be able to continue to exercise of living and working in a major international centre like London rather than in South Africa, which was her own country of origin. She was entitled to exercise that choice. But, in those circumstances, the Upper Tribunal could not be faulted for having come to the conclusion that any interference with the Appellant’s right to respect for family life conformed to the principle of proportionality.

 

Required Evidence:

Following the Court Appeal’s decision in R (BritCits) v Secretary of State for the Home Department [2017] EWCA Civ 368; [2017] 1 WLR 3345, the Home Office published new Policy Guidance to take that judgment into account. The evidence required to be provided to meet the requirements of the Rules is set out within the Guidance, Immigration Directorate Instruction Family Migration: Appendix FM Section 6.0 , Adult Dependent Relatives, August 2017, Annex FM 6.0: adult dependent relatives .

Evidence of the family relationship between the applicant and the sponsor:

  • This should be in the form of birth or adoption certificates, or other evidence. The ECO will need to assess whether other evidence is needed.

Evidence that, as a result of age, illness or disability, the applicant requires long-term personal care:

  • Medical evidence that the applicant’s physical or mental condition means that they require long-term personal care because they cannot perform everyday tasks, e.g. washing, dressing and cooking. This must be from a doctor or other health professional.

Evidence that the applicant is unable, even with the practical and financial help of the sponsor in the UK, to obtain the required level of care in the country where they are living:

Evidence that the required level of care:

(a) Is not, or is no longer, available in the country where the applicant is living. This evidence should be from a central or local health authority, a local authority, or a doctor or other health professional in the country in question. If the required care has been provided through a private arrangement, the applicant must provide details of that arrangement and why it is no longer available.

(b) Is not, or is no longer, affordable in the country where the applicant lives. If payment is currently being made for care, or was made previously, the ECO should ask to see records of such payments and an explanation of why this payment cannot continue. If financial support has been provided by the sponsor or other close family in the UK, the ECO should ask for an explanation of why this cannot continue or is no longer sufficient to enable the required level of care to be provided.

Evidence of adequate maintenance, accommodation and care in the UK:

Where the sponsor is a British citizen or settled in the UK, the applicant must provide a signed undertaking from the sponsor confirming that the applicant will have no recourse to public funds, and that the sponsor will be responsible for the applicant’s maintenance, accommodation and care, for a period of 5 years from the date the applicant enters the UK if they are granted Indefinite Leave to Enter.

In addition, in all cases the applicant must provide evidence from the sponsor that the sponsor can provide the maintenance, accommodation and care required, in the form of any or all of the following:

(a) Original bank statements covering the last six months;

(b) Other evidence of income – such as pay slips, income from savings, shares, bonds – covering the last six months;

(c) Relevant information on outgoings, e.g. Council Tax, utilities, etc, and on support for anyone else who is dependent on the sponsor;

(d) A copy of a mortgage or tenancy agreement showing ownership or occupancy of a property; and

(e) Planned care arrangements for the applicant in the UK (which can involve other family members in the UK) and the cost of these (which must be met by the sponsor, without undertakings of third party support).

 

Immigration Rules Appendix FM-SE- family members specified evidence:

Immigration Rules Appendix FM-SE: family members specified evidence must be read in mind with Annex FM 6.0: adult dependent relatives and provides as follows in relation to the required evidence:

Adult dependent relatives

33.Evidence of the family relationship between the applicant(s) and the sponsor should take the form of birth or adoption certificates, or other documentary evidence.

34.Evidence that, as a result of age, illness or disability, the applicant requires long-term personal care should take the form of:

(a) Independent medical evidence that the applicant’s physical or mental condition means that they cannot perform everyday tasks; and

(b) This must be from a doctor or other health professional.

35.Independent evidence that the applicant is unable, even with the practical and financial help of the sponsor in the UK, to obtain the required level of care in the country where they are living should be from:

(a) a central or local health authority;

(b) a local authority; or

(c) a doctor or other health professional.

36.If the applicant’s required care has previously been provided through a private arrangement, the applicant must provide details of that arrangement and why it is no longer available.

37.If the applicant’s required level of care is not, or is no longer, affordable because payment previously made for arranging this care is no longer being made, the applicant must provide records of that payment and an explanation of why that payment cannot continue. If financial support has been provided by the sponsor or other close family in the UK, the applicant must provide an explanation of why this cannot continue or is no longer sufficient to enable the required level of care to be provided.

 

Where the Requirements of the Rules are not met- Exceptional circumstances and ECHR Article 8:

Immigration Directorate Instruction Family Migration: Appendix FM Section 6.0, Adult Dependent Relatives, August 2017, Annex FM 6.0: adult dependent relatives , provides the relevant guidance.

Where the applicant does not meet the requirements of the Adult Dependant Relatives Rules, the decisionmaker must go on to consider:

  • Firstly, whether, in the particular circumstances of the case, the ECHR Article 8 right to respect for private and family life is engaged; and
  • If it is, secondly, whether there are exceptional circumstances which would render refusal a breach of Article 8 because it would result in unjustifiably harsh consequences for the applicant or their family.

In order to establish that family life exists between adults who are not partners, there must be something more than such normal emotional ties. Whether such family life exists will depend on all of the facts of the case. Relevant factors will include the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant’s dependence on the financial and emotional support of the family, and the prevailing cultural tradition and conditions in the country where the applicant lives.

Where such family life exists, such that Article 8 is engaged, the decision-maker must assess whether there are exceptional circumstances which would render refusal a breach of Article 8, under paragraph GEN.3.2. of Appendix FM.

Exceptional circumstances

Under paragraph GEN.3.2., where an application for entry clearance or leave to enter or remain under Appendix FM does not otherwise meet the requirements of that Appendix or of Part 9 of the Rules, the decision-maker must go on to consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal a breach of Article 8. A breach will arise if such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application.

A “relevant child” is a person under the age of 18 years at the date of application who, it is evident from the information provided by the applicant, would be affected by a decision to refuse the application.

Under section 55 of the Borders, Citizenship and Immigration Act 2009 and under paragraph GEN.3.3. of Appendix FM, the decision maker must take into account, as a primary consideration, the best interests of any relevant child in considering whether there are exceptional circumstances under paragraph GEN.3.2.

“Exceptional circumstances” means circumstances which would render refusal of the application a breach of Article 8, because it would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from the application would be affected.

“Exceptional” does not mean “unusual” or “unique”. Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional.

Instead, “exceptional” means circumstances in which refusal of the application would result in unjustifiably harsh consequences for the individual or their family such that refusal would not be proportionate under Article 8.

“Unjustifiably harsh consequences” are ones which involve a harsh outcome(s) for the applicant or their family which is not justified by the public interest, including in maintaining effective immigration controls, preventing burdens on the taxpayer, promoting integration and protecting the public and the rights and freedoms of others.

This involves consideration of whether refusal would be proportionate, taking into account all the facts of the case and, as a primary consideration, the best interests of any relevant child. The case-law makes clear that where the applicant does not meet the requirements of the Rules, and has established their family life in “precarious” circumstances (e.g. when they have limited leave to enter or remain in the UK), something “very compelling” is required to outweigh the public interest in refusal. Likewise, where family life is formed or exists with a person outside the UK who has no right to enter the UK and does not meet the requirements of the Rules for entry clearance, Article 8 does not require that they be granted entry, in the absence of such exceptional circumstances.

 

Conclusion:

The UK Government was fully aware of how near impossible the Adult Dependant Relatives Rules were to satisfy when they came into effect on 9 July 2012, yet the relevant entry clearance fee was set at an exorbitant level. Currently, the fee required to accompany a settlement entry clearance application stands at £3250.00. Tendering of such an amount is tantamount to “buying” a visa however in practice, most applications submitted under these Rules are refused by the entry clearance officer.  In their harsh and rigid approach in consideration of such applications, officials appear to never run out of reasons to put forward as a basis of refusal.

Careful consideration  must therefore be given to obtaining evidence of sufficient strength and reliability, with carefully prepared well considered supportive witness statements in the full knowledge however that even if the application is initially refused, some hope might lie in future success in an appeal before the Tribunal.

 

An ex-dictator and the Mnangagwa regime behind the façade of legality: Effect on UK based Zimbabwean activists

There are some, who would readily dismiss without further thought Robert Mugabe’s  recent denouncements of the  military intervention of November 2017,  including  what he says happened during the  takeover.   Mugabe is  mad  they exclaim.   He is a  bitter, senile  old man they mutter  with exasperation.   That might be  substantially or wholly  true but consider for  a while,  if you will, whether there is  any shred of truth  in what he says  happened  last year:

“ ……The Central Intelligence Organisation,  many of whose members were bashed, with heads cracked and this is not an exaggeration,  some of them are missing to this day…..” 15 March 2018, SABC Digital News, https://www.youtube.com/watch?v=2f6akTpjIHo

It is not  really  what Mugabe says  about  the events  leading to and during his ouster  as much as what he says regarding his claim that  the military committed human rights abuses during the takeover, that is of  concern.   The claim  amounts to this: whilst outwardly  seeking to dress  the  military takeover  with some  veneer of legitimacy and presenting it as bloodless, the military and Mnangagwa’s regime should be accountable for missing Zimbabwean citizens.

In  November 2017, Mnangagwa  and Chiwenga  embarked  upon  a power grab, whose roots did not have the consensus  of the Zimbabwean people until they were manipulatively  beguiled into  demonstrating  against Mugabe  on 18 November 2017.  The Zimbabwean masses  clearly made  the job easy  for the army; as Mnangagwa subsequently  pronounced, “The voice of the people is the voice of God”.   His  ascendancy  to power  therefore appeared to have  the total approval of the Zimbabwean people.

The problem however is this:  if  what Mugabe  says is true,  in combination with the fact that  Zimbabweans are being  ruled by  an unelected president,  propped up by a violent military,  with a seeming  illegitimate   government running the day to day lives of ordinary Zimbabwean, then Zimbabwe is  still very  far from  the beginnings of any democratic walk.   Such an illegitimate  regime as seems to be running the order of things in  Zimbabwe,   has from its inception ridden  rough shod over  human rights and  abducted  opponents.  That these opponents  were or are  pro-Mugabe should  be no less worrisome.  Soon, very soon, just like his previous Master,   Mnangagwa  may likely  turn round and mete out the very same  violent treatment on a larger scale against  the ordinary  Zimbabwean and other opposition supporters.

 

Abuses during the military takeover of November 2017:

Take Mugabe’s rantings out of the equation for a moment,  as the mutterings  of a disillusioned  old man still in the throes of  denial,   and introduce  a few background sources:

“(Harare) – Zimbabwe authorities should uphold the rights of everyone detained following the military takeover of the government on November 15, 2017, Human Rights Watch said today. The military should publicly acknowledge the identities and location of everyone arrested and detained, and ensure that their due process rights, including access to lawyers and family members, are respected. The military should clear the air about any arrests across Zimbabwe and hand over any criminal suspects to the appropriate civilian authorities according to law,” said Dewa Mavhinga, Southern Africa director at Human Rights Watch. “Failing to disclose the whereabouts of those detained is an enforced disappearance that places detainees at greater risk of abuse. During the military takeover, Maj. Gen. S.B. Moyo announced the military’s avowed aim of arresting “criminals around Mugabe.”  Media reports indicate the military arrested a number of former president Robert Mugabe’s associates and that they remain in detention.  However, the military has not provided information about any arrest, location, and conditions of detention, or reasons for arrest……..The Zimbabwe constitution provides for the pretrial rights of detainees and guarantees freedom from torture and cruel, inhuman, or degrading treatment or punishment. Zimbabwe is also party to the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights, which guarantee rights to personal liberty and due process, and protection from arbitrary arrest and detention, and mistreatment in custody.  “The end of Mugabe’s 37 years of abusive rule should not be marked by continued rights violations,” Mavhinga said.  “Respect for the rule of law and due process for anyone in detention would signal a clean break with the past.” Human Rights Watch, 22 November 2017, https://www.hrw.org/print/311769

Following the military takeover, Robert Mugabe resigned as president on November 21 after 37 years of authoritarian rule marred by countless serious human rights violations. On November 24, Mugabe was replaced by his former deputy, Emmerson Mnangagwa, who has his own long record of rights violations. ………………… As reports of abuses by the military since the takeover began to emerge, the excitement and euphoria that many Zimbabweans greeted the end of Mugabe’s rule quickly fizzled out to be replaced by uneasiness and uncertainty.  Allegations are rife that between November 14 and 24, the army arrested and detained a number of Mugabe’s associates without providing information about the arrests, or places and conditions of detention……………… This is the same military that has been credibly implicated in rights violations against the general population during the Mugabe years. Mugabe openly encouraged partisanship of the military as a tool for maintaining his grip on power. The new president, Mnangagwa, assumed office with military backing, and appointed two army generals to cabinet, Air Marshal Perence Shiri, and Maj. Gen. Sibusiso Moyo.  This raised concerns about Mnangagwa’s independence from the armed forces, suggests further entrenchment of the military in civilian affairs..” Human Rights Watch, 12 December 2017, https://www.hrw.org/news/2017/12/12/zimbabwe-after-military-takeover-prospects-credible-elections-and-human-rights

“The military police arrested a number of suspects on charges of fraud and corruption. Those arrested included senior state officials, implicated in corruption, whose rights were denied on arrest, including by being denied access to lawyers. During the military takeover in November, army personnel detained several members of a ZANU- PF faction who were alleged to support Emmerson Mnangagwa’s dismissal. They were held for more than the constitutionally permitted 48 hours before being brought to court. Former Finance Minister Ignatius Chombo, ZANU-PF Youth League Commissar Innocent Hamandishe, and ZANU-PF Youth League secretary Kudzanayi Chipanga, were arrested and detained by military police on 14 November. During their detention they were denied access to their lawyers and were not taken to court until 25 November. Ignatius Chombo was charged with corruption and criminal abuse of office; Kudzanayi Chipanga and Innocent Hamandishe were charged with publishing or communicating falsehoods after they claimed at a press conference that Army Commander General Chiwenga stole money from the sale of Marange diamonds.” Zimbabwe 2017/2018, Amnesty International, https://www.amnesty.org/en/countries/africa/zimbabwe/report-zimbabwe/

It has only been fours months since the  military takeover of 2017.  It is clear that the  above  sources barely begin to  skim over the surface regarding what truly happened  during  the military takeover.  The  extent of  the abuses committed in November 2017 might emerge weeks,  months, years  or even decades from now.  This  should not be surprising.  After all,  nearly 40years ago people witnessed killings; there were bodies;  people point to graves and  some are still yet to heal  from   the Gukurahundi Matabeleland  atrocities committed in the 1980’s  but  till date,  no one has been held accountable  for  such abuses  committed at a time when Mugabe was in power along with his henchmen including President Mnangagwa.

 

The terror behind the “democratizing  coup”:

It  is very likely there is  much more simmer to  the  political cauldron  behind the curtains than is apparent giving rise to Mugabe’s  recent media outbursts.  It is surely  the Master  seeking to draw out the monster lying latent  within the Pupil.   Barely a week ago, Mnangagwa fired off a warning shot to Mugabe: “ President Emmerson Mnangagwa has warned Robert Mugabe and his ally Ambrose Mutinhiri over their new outfit known as National Patriotic Front (NPF)………… “Currently we see and hear that there is some new party. We are not happy with what the media is saying. We are not yet sure if this is true or not but, once we get factual information, we will not hesitate to take action,” said Mnangagwa.   Zanu PF Secretary for Youth Affairs, Pupurai Togarepi, also blasted Mugabe and ordered him to behave and be a responsible politician. “Can someone please try and talk to Robert Mugabe? He must withdraw his behavior and be responsible. If he fails to respect the revolution, we will stop respecting him in future. “We fear no one. Those thieves (G40) must stop provoking us through seeking media attention.  It is the Youth League’s responsibility to defend the Revolutionary Party,” Togarepi said”.   8 March 2018, Zimbabwe: Mnangagwa Warns Mugabe and Mutinhiri, Says Unhappy With New Party, https://allafrica.com/stories/201803080002.html

Despite  the muted pretence  that the events of November 2017 were not a coup,  amidst the euphoria came a word of warning:

“The Zimbabwean Army nonetheless insists that “this is not a military takeover of government.” Even as tanks patrol the streets of the capital, Harare, and the tap-tap of military-issue boots echoes across the corridors of power, the generals repeat that old refrain: They just want to restore order and improve Zimbabwe’s ailing economy. Their intervention, the generals insist, is a patriotic act that will improve life for all. And while it is true that Mugabe is a ruthless despot who has woefully mismanaged Zimbabwe for the past four decades, a military coup is not the right way to end his reign. World history is full of atrocities committed in the name of law and order. The international community should be concerned about what’s happening in Zimbabwe right now. I’m an Argentinean scholar of Latin American militarization, and I can attest that so-called “democratizing coups” are largely fiction………… Some have likewise suggested that Mugabe’s overthrow may be an opportunity for Zimbabwe. United Kingdom Foreign Secretary Boris Johnson even expressed hope that a “stable and successful” country will emerge from the coup. I’m extremely dubious. Latin American history shows that military dictatorships do not help nations advance or build democracy. Instead, they leave stunted states unable to guarantee democratic legitimacy or ensure social well-being…………. Many Zimbabweans therefore probably don’t see much of a difference between the egotistical, self-glorifying – and technically democratically elected – President Mugabe and the military bosses who sent tanks into Harare and stationed armed soldiers at major buildings and routes. I would dispute that Zimbabwe’s political rupture will usher in an era of order and progress. And I think many Latin Americans would agree with me. I wish Zimbabweans luck, but based on my country’s past, I fear for their future….”. The Conversation,  https://theconversation.com/latin-american-history-suggests-zimbabwes-military-coup-will-turn-violent-87648

It might not  need the Zimbabwean opposition to bring out  Mangangwa’s violent  nature:  he might well bite sooner rather than later and react in retaliation to the targeted  taunts  emanating from  the  very political opponents who are pro- Mugabe that  he has been hounding  since November 2017.

 

Impact upon UK based Zimbabwean  activists and protesters:

Activists and social  medial protesters clearly  need to up their game.  Mnangagwa has himself turned to social media on a charm offensives campaign http://www.africanews.com/2018/01/15/mnangagwa-turns-to-social-media-to-engage-zimbabweans//.

In relation to the youth, clearly the battle ground is  seen as social media: “President Emmerson Mnangagwa is not taking the threat of social media for granted and has urged Zanu PF youths to fight toe-to-toe with opposition parties as the ruling party bids to capture the elusive youth vote. Mnangagwa, who has been using his newly reactivated social media accounts on Facebook and Twitter, admits he is not as techno-savvy as the younger generation but urged Zanu PF youths at the wing’s inaugural assembly to engage the opposition on social media. “Isu nana Mai Muchinguri-Kashiri hatizvigone. Musakundwa mu social media imomo pindai mu social media murakashe vanhu (We are not techno savvy. Don’t be beaten to the game. Get in there and dominate social media),” Mnangagwa said to applause from the Zanu PF youths”. 9 March 2018, Zimbabwe Situation, http://www.zimbabwesituation.com/news/zanu-pf-tackles-rivals-on-social-media/

Various UK based human rights and civic groups  have,  among other issues,  been clamouring for  the Mnangagwa  regime to  account for  the Gukurahundi genocide, ensure  free and  fair elections as well as protesting against  military rule in Zimbabwe.  Where  it is the case that some in Zimbabwe  might  now  have rested on their laurels assuming that  with Mugabe’s exist, Mangangwa will bring them to the promised land, those in the diaspora who have experienced a true taster of some  democratic freedoms, still have a job or two to  do to keep going that cry of  resistance against oppression,  tyranny, corruption and dictatorial tendencies  ingrained within the DNA of the  current Zimbabwean regime.

 

 

 

 

Is Mnangagwa’s New  Government paving the way for  UK mass removals of failed Zimbabwean Asylum Claimants ?

Three months.  That is  the amount of time the UK Government  gave  undocumented Zimbabweans before broaching  the subject of enforcing their return  following Mugabe’s ouster on 21 November 2017.  Time to come down from the  lingering  false high induced  by Mugabe’ s departure, back to a crashing reality and forlorn acceptance  that,  “Hapana zvambochinja muZimbabwe”, ie nothing much has changed in Zimbabwe.

Apparently, it has been reported by various Zimbabwean media outlets on 13 February 2018, that one of Zimbabwe’s Vice Presidents,  Kembo Mohadi met  with the British Ambassador to Zimbabwe, Ms Catriona Lang in Harare. An interesting array of  subjects came up for discussion,  however the one  that has made the headlines is an announcement by the British  Government of its intention  to  repatriate some 2500 undocumented Zimbabweans  residing  in the UK.  It has been  reported that  the Vice President   told journalists after the meeting that,  “ Zimbabwean has no problems receiving its nationals back but would want them vetted  to ensure  they are genuine  Zimbabweans before taking them back”. 

 

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